Events

The Endangered Institution (of Governor): Problems and Prospects

Yogesh Pratap Singh is Associate Professor of Law at National Law University Odisha and currently on deputation as Deputy Registrar (Research) in the Supreme Court of India and may be contacted at yogeshpratap@gmail.com.

Baxi defines crisis as a situation where “the structure of a social system allows fewer possibilities for problem-solving than are necessary for the continued existence of the system”. Where people desire change, but are unable to initiate or attain it. There arises a perception of crisis. Crisis is not a situation-it is incapacity to act. Among various crises, the first and foremost is the crisis of legitimation of law and legal institutions. Institution of Governor under the Constitution which have tumbled many governments is one perversion arising out of this crisis. It will not be an overstatement to say that no institution or constitutional office has suffered greater erosion or degradation than the office of Governor.Political trends and events have now lent heat to the debate and generated a critical need to re-examine the Governor’s role in relation to both constitutional theory and practical politics. This paper attempts to highlight some of the major issues viz., the status of the Governor under Constitutional Scheme, relationship between Governor and the President, Governor and the Central Government, Governor and his council of ministers, controversies regarding exercise of his discretionary powers, his role under Article 356 especially in the light of leading judicial pronouncements such as S.R. Bommai v. Union of India and Sarkaria Commission recommendations. Finally, after examining the constitutional scheme about institution of Governor, constituent assembly debates to see the vision of the drafters, approach of the apex court, this paper seeks to demonstrate the principle that any law which seeks to bring a change to the politico-legal values can be a success only if political culture in the country is made conducive for the operation of the law i.e. the law in isolation can never be successful unless backed by various socio, political and legal conventions. Sarkaria Commission recommendations with respect to the institution of governor must be given effect to save this endangered institution.

Introduction

The office of Governor is a British Indian transplant with a federalistic flavor.[i] Prior to fourth general election[ii] this constitutional office was generally beyond any controversy for obvious reasons. The Congress party was in majority at the Centre and also in majority of the states and therefore possibility of any Centre-state dispute was less likely. The role of office of Governor was confined to normal routine ceremonial functions. Sarojini Naidu,[iii] Governor of Uttar Pradesh at one time labeled herself as “a bird in a golden cage”. Similar sentiment was shared by Shri B. Pattabhi Sitaramayya[iv] who said “he had no public function to perform except making a fortnightly report to the President.” Justice Subba Rao recounts: “One Governor told me as early as 1954 that he read two hundred novels during his tenure, indicating thereby that he had no serious work to do. Another Governor publicly declared that she was a super-hostess.[v] The political situation after fourth general election witnessed a radical change. Congress though managed to retain the power in the Centre but lost dominance in many states which were taken over by non-congress coalition political parties. There was hardly any ideological cohesion amongst them. This change brought office of governor in the light. In states with non- congress Government, the Governor was taken as Centre’s reliable servant acting on the instructions of the Union Government. This office assumed more importance in states with non-congress coalition government. There were opportunities for the Governor to exercise his constitutional powers to destabilize or weaken the non-congress state governments. This gubernatorial office, which was not embroiled in the political turmoil during pre-1967 era of one party dominance suddenly shot into both importance and controversy that continues till date.[vi] The recent fiasco of Uttarakhand[vii] and Arunanchal Pradesh[viii] once again brought this office under unembellished disparagement. It will not be an exaggeration to say that no institution or constitutional office has suffered greater erosion or degradation than the office of Governor. The public today generally regards the Governor as an employee of the Central Government. The unfortunate part is that quite a few incumbents of this office have no clear and proper conception of their role in our constitutional scheme, and, in fact, regard themselves as the lackeys or employees of the Central Government and readily act according to its behest.[ix] One can only say that these persons let down their high office and betrayed the high hopes of the framers of the constitution.

Genealogy of Institution of Governor

British came to India in sixteen hundred as traders in the form of the East India Co. Attracted by the stories of the fabulous wealth of India and fortified by the adventurous maritime activity of the Elizabethan era, Englishmen were eager to establish commercial contract with the east. The East India co. got a Charter from Queen Elizabeth in Dec’1600, which vested the management of the company in the hand of a Governor and 24 members. The Charter granted to the Governor and Co.; the power to make Ordain and constitute such laws, rules and regulations for the good governance of the Co., but this power was limited. The Co. and Governor could not make such laws, rules which were in contravention of English statutes and laws. By the Royal Charter of 1698 the Governor and Council was authorized to exercise civil and criminal jurisdictions and to maintain troops for their defense. Regulating Act, 1773 raised the status of the Governor in Calcutta to Governor-General in Bengal with four Councilors. Under the Governor and Council, there was a body of military and civil servants. Warren Hastings was appointed as first Governor-General, the tenure of the office of the Council was five years and they could be removed only by the King on the recommendations of the court of Directors, the council was to take decision by majority and the Governor-General could cast vote only in case of a tie in the Council. Thus, Governor General of Bengal and his Council became the centre of power in India. They were exempted from arrest or imprisonment in any action in any court.

The Charter Act of 1833 introduced significant changes and the designation of the Governor-General of Bengal was raised to Governor-General of India. After the mutiny in 1857 the Act of 1858 was passed which vested the Government of India in the Crown. The Act of 1861 empowered the Governor-General to legislate by Ordinances, and also empowers to make rules for the transaction of the business which enabled Lord Canning[x] to introduce the portfolio system into the executive council. This was the first step on the road to Cabinet Government. The Government of India Act, 1919 brought significant changes and introduced the system of Diarchy[xi] in the provinces. In new constitutional setup, the power of Governor-General raised in the following matters:

His prior sanction was required to introduce Bills relating to certain matters.

He had the power to veto or reserve for consideration of the Crown any Bill passed by the Indian legislatures.

He could have made Ordinances which has same effect as the law but for temporary period in emergency.

Where there is a dispute that subject was central or provincial it was the Governor-General to decide not the court.

The Government of India Act, 1935 is regarded as the second milestone on the Highway leading to a full responsible Government. It introduced provincial autonomy. The Governor was now required to act on the advice of the Ministers responsible to the legislatures. Even so, it placed certain special responsibilities on the Governor, such as prevention of grave menace to the peace or tranquility, safeguarding the legitimate interest of minorities and so on. The Governor could also act in his discretion in specified matters. He functioned under the general superintendence of the Governor-General, whenever he acted in his individual judgment or discretion. The Constituent Assembly discussed at length the various provisions relating to the Governor. Two important issues were considered. The first issue was whether there should be an elected Governor and the second issue related to the extent of discretionary powers to be allowed to the Governor.

III. The Prevailing Constitutional Scheme

Appointment and Removal

There shall be a Governor for each state,[xii] provided that nothing in this Article shall prevent the appointment of the same person as Governor for two or more states.[xiii] The Governor of a State shall be appointed by the President by warrant under his hand and seal.[xiv] Generally, the President selects a person for the Governorship of a state on the advice of his Council of Ministers, in other words on advice of Central Government and appoints him as a Governor, and he never use his discretion in this regard.

The Memorandum on the principles of a provincial Constitution prepared and circulated by the constitutional adviser on May 30, 1947, set out the general constitutional framework for the Provinces.[xv] The memorandum provided two alternate methods that the Governor[xvi] would be elected by the provincial Legislature by secret ballot according to the system of proportional representation by means of the single transferable vote. In making this suggestion Sir. B.N. Rau stated that in a Constitution of unitary nature or in a federal constitution having unitary feature like that of Canada, Provincial Governors could be appointed by the Central Government. At a joint meeting of the Provincial Constitutional Committee and the Union Constitution Committee on June 7, 1947, it was accepted that India should be a federation with strong centre. As far as Governors were concerned the Committee decided that they should not be appointed by the Central Government but chosen by the Provinces. A proposal for appointment of Deputy Governor was rejected by the committee. The second alternate which was favoured by some members in Drafting Committee was appointment of the Governor by the President.

On June 9, committee discussed the question of Electoral College to be set up to elect the Governor and a sub-committee consisting of B.G. Kher, K.N. Katju and P. Subramanian was appointed to give their report on Electoral College.[xvii] The committee recommended that the member of Electoral College should be elected by territorial constituencies at the time of each general election on the scale of one elector for every 10,000 adults, and this college would continue till the new college was constituted at the next general election. However, this suggestion of Electoral College was rejected and the committee recommended that the Governor should be elected directly by the people on adult suffrage basis.

The proposals of the Provincial Constitution Committee as approved by the Assemblies were incorporated in the Draft Constitution prepared by Sir. B. N. Rau.[xviii] This draft had twelve clauses dealing with the Governor[xix] and a schedule[xx] consisting an instrument of instruction for the Governor. The Constituent Assembly of India rejected the proposal for an elected Governor and substituted for it a Governor appointed by the President, besides other things, “in the interest of All India Unity and with a view to encouraging centripetal tendencies” and to make it “necessary that the authority of the Government of India should be maintained intact over the Provinces”[xxi] his post has been made nominative. Pundit Nehru also supported this view on the ground that election of the Governor would encourage provincial way of thinking. Finally, Constitution adopted that “The Governor shall hold office during the pleasure of the President”[xxii] and the term of the Governor is prescribed as five years. But in actual reality the Governor is appointed by the Central-Government which can select any person it pleases and send the name to the President who has no other option but to appoint him.

The Raj Bhawan: A Sanctuary of Retired Party Loyalists and Politicians Losing Election

From the plethora of examples, it is clear that active politicians are being appointed as Governor. Sheela Dixit, Mr. Kalyan Singh, Mr. Ram Naik, Mr. Sunder Singh Bhandari, Mr. Buta Singh, Mr. Sibte Raji, Mr. Sushil Kumar Shinde, Mr. Madan Lal Khurana, Mr. S.M. Krishna all primary members of various political parties were elevated to impartial and independent Constitutional post of the Governor. The Constitution provides no specific qualifications for appointment of the Governor except that he must be a Citizen of India and has completed the age of thirty-five years.[xxiii] In practice the only qualification seems political affiliations and loyalty towards political party ruling at Centre. BJP opposed Jagmohan’s appointment as Governor of J&K but later totally changed its outlook and Jagmohan was made Union Minister under the Vajpayee Government. In nature and spirit, it has turned to be more “political” than Constitutional. Governors enter into an unholy alliance with the Centre; oblige the ruling party at Centre by faithfully executing its decisions; embarrass the State Governments. As Nath Pai rightly observed that “office of the Governor has been regarded by the Centre for its patronage and largesse.”[xxiv] Change of Governor became ritual with the change in government at Centre. The survival of the Governor as an institution is crucial but, sans functional good behaviour, his trespasses may prove fatal. The folly begins with the choice for the high and delicate office.[xxv]

Considerations Governing the Choice of Governor

The observation made by Jawahar Lal Nehru in the Constituent Assembly is worth mentioning: “I think it would be infinitely better if he (the Governor) was not so intimately connected with the local politics of the province, with the factions in the provinces……. He must be acceptable to the province, he must be acceptable to the Government of the province and yet he must not be known to be a part of the party machine of that province. He may be sometimes, possibly, a man from that province itself. We do not rule it out. But on the whole, it probably would be desirable to have people from outside, eminent people, sometimes people who have not taken too great a part in politics. Politicians would probably like a more active domain for their activities but there may be an eminent educationist or persons eminent in other walks of life,…………he would nevertheless represent before public someone slightly above the party and thereby in fact, help that Government more than if he was considered as part of the party machine.”[xxvi] Further the Rajmannar Committee, dealing with the Governor’s office, besides other recommendations stated: “the Governor should be ineligible for a second term in office and he should be removable only for proved misbehavior or incapacity after inquiry by the Supreme Court. He should always be appointed by the President in consultation with the State Cabinet’s or alternatively in consultation with a high-powered body specially constituted for this purpose.”[xxvii]

The Sarkaria Commission recommended that a person to be appointed as a Governor should satisfy the following criteria: He should be eminent in some walk of life; he should be a person outside the state; he should be a detached figure and not too intimately connected with the local politics; he should be a person who has not taken too great a part in politics generally, and particularly in the recent past, and in selecting a Governor in accordance with the above criteria minority should be given a chance as hitherto. The Commission also recommended that a politician from the ruling party at the Union is not appointed as Governor of State which is being run by some other party or a combination of other parties.

The National Commission to Review the Working of the Constitution, in its report recommended that in the matter of selection of a Governor, the Sarkaria Commission’s suggestions must be kept in mind.[xxviii] The Administrative Reform Committee’s (ARC) study team headed by M.C. Setalvad had gone a step further: “no person who is appointed Governor should take part in politics after his appointment as such; not even after retirement”.[xxix] The Governors Committee also stated that person should be well-known and respected for his integrity and competence. There is no room for old and dilapidated politician, civil servants and judges[xxx] to be made Governors, to provide to them comfortable living at the end of their lives, or to make troublesome politicians Governor either to satisfy them or to keep them away from causing mischief in their home states.[xxxi]

[a]. Process of Appointment

Sarkaria Commission recommended;[xxxii] that in order to ensure effective consultation with the state Chief Minister in appointment process, the procedure of consultation should be prescribed in the Constitution by suitable amendment in Art.155. The Vice-President of India and the Speaker of the Lok Sabha may also be consulted by the Prime Minister in selecting the Governor. The consultation should be confidential. Besides above the process President should also take advice from the Inter-State Council.

[b]. Process of Removal

A Governor shall hold office for a term of five years from the date on which he enters upon his office,[xxxiii] but subject to the pleasure of the President. Here two questions arise, first, whether this power of the President to remove the Governor is unfettered power and he may remove a Governor even if he does not like his face or food.[xxxiv] Second question is that whether in fact this power belongs to the President or Central Government. In present practice power of pleasure is in fact the pleasure of the Prime Minister and removal of the Governor has become easier than the removal of a peon. In Surya Narain v. Union of India[xxxv] Rajasthan High Court validated the dismissal of the Governor by the President (in fact, by Indira Gandhi) only because he had been appointed by the Janata party Government. Another example which shows the misuse of this power was evident when on advice of National Front Prime Minister V.P. Singh, the President asked all the Governors to resign, only because they were appointees of previous Government.

On Art.156 Dr. Ambedkar said in the Constituent Assembly on 31st May 1949:

“This power of removal is given to the President in general terms…..it seems to me that when you have given the general power, you also give the power to President to remove a Governor for corruption, for bribery, for violation of the Constitution or any other reason which the President no doubt feels is legitimate ground for the removal of the Governor. It seems, therefore, quite unnecessary to burden the Constitution with all these limitations stated in express term when it is perfectly possible for the President to act upon the very same ground under the formula that the Governor shall hold office during his pleasure. I, therefore, think that it is unnecessary to categorize the conditions under which the President may undertake the removal of the Governor”.[xxxvi]

The language of above statement makes it clear that he can act on the basis of his individual judgment without the Prime Minister’s advice, but unfortunately the President never wants to do so. This position should be changed. L.P. Singh suggested that: “functioning with the apprehension of dismissal or transfer…… without his willing consent may make it difficult for the Governor to function with complete impartiality and as an independent constitutional authority”.[xxxvii]

[c]. Oath of the Governor

Every Governor and every person discharging the function of the Governor shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of the High Court, an oath or affirmation to the best of his/her ability preserve, protect and defend the Constitution and the law.[xxxviii] In fact all powers of the Governor flow from this provision. Ancient Indian Rajdharma had similar practice of taking oath which was called the coronation ceremony (pattabhishekha) of the King.[xxxix] Fatefully this practice is confined to a mere ritual without any legal or constitutional consequences.

. Immunity

The President and the Governor has been given immunities while exercising their powers under the Constitution. The President or the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.[xl] But under the proceeding of impeachment[xli] the conduct of the President can be investigated and reviewed by any court appointed and designated by any of the House of the Parliament. No criminal proceedings or arrest process shall be instituted in any court against the President and the Govenor during his term.[xlii] Further under Art. 361 (4) immunity from civil proceedings has been provided. In the Constituent Assembly, Mr. H.V. Kamath raised (on 8th Sept’1949) a question with reference to Art.361 (2) that whether the head of the State “has no liability for any criminal act committed by him during his term,”[xliii] but it was not clarified by Dr. Ambedkar. However, it appears that the President and Governor have immunities only for constitutional acts or acts done in the performance of his duties and not above and beyond that. If we read Art.154 (1) it specifically states “the executive power of the state shall be vested in the Governor and shall be exercised by him either directly or through officers’ subordinates to him in accordance with the Constitution. (italics supplied). We find that the power given to the Governor is exercised by him only in accordance with the Constitution and not beyond that, therefore, immunity available to him is only for and during the performance of his duties and not otherwise. This was perhaps the reason why Indira Gandhi dropped the ‘Fortieth Amendment Bill’ to provide absolute immunity to the President, the Prime Minister and the Governors from Criminal liability. Any such provision would be violative of Rule of Law which is one of the basic features of the Constitution. In a case Bombay High Court decided that decision taken by a Governor in his sole discretion is liable to get immunity of Art. 361 but if he acts malafide the President can take action against him.[xliv] The Madras High Court expressed its view that by taking Art.154, 163 and 161 (1) collectively, we find that the Governor will be answerable to any Court regarding the functions exercised by him in his discretion or on the advice of ministers.[xlv]

Powers and Functions of the Governor

The powers of the Governor of a State are analogous to those of the President excepting that the Governor has no diplomatic military or emergency power. The powers of the Governor can be classified as under:

[a]. Executive Powers

The executive power of the state is vested in the Governor and is to be exercised by him directly or through officer subordinate to him.[xlvi] It further says that the executive power of the state extends to matter with respect to which the legislature of the state has power to make law.[xlvii] All executive actions of the State shall be expressed to be taken in the name of the Governor and shall be subject to the Constitution and law made by the Parliament. Executive power is an indefinable multidimensional and constitutional concept varying from time to time, from situation to situation and with the changing concepts of state in political philosophy and political science. Plato’s or Aristotle’s executive power, the Roman executive power, Rousseau’s, Locke’s or Montesquieu’s executive power are not the executive power of the modern state. [xlviii] The definition given by Indian Court is that executive power is a ‘residuary power’ after subtracting legislative power and judicial power. Executive power is nothing[xlix] but the “the whole state in action” in its manifold activities. In other words, without executive power the legislative power and judicial power cannot be effective. The Allahabad High Court in one case[l] decided that legislative authority is not necessary for every executive act. Executive power means something more than merely executing the law.

[b]. Power to Grant Pardon

The Governor of a state shall have power to grant pardons, reprieves, respites or to remit or commute the sentences of any person convicted of any office against any law relating to a matter to which the executive power of the state extends[li]. If we compare the power of the Governor to the power of the President, Governor has concurrent powers in respect of suspension, remission and commutation of a sentence of death. But the Governor has no power to grant pardon where the sentence is death, because Art. 72 (3) expressly says that – nothing in sub-clause (c)[lii] of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a state under any law for the time being in force (the word pardon is missing here). Governor can exercise this power at anytime. The power is exercised by the Governor in exercise of his executive power and not the judicial power. In Tara Singh v. Director[liii] Punjab High Court decided that there is no obligation to hear the parties concerned before rejecting or granting a mercy petition. In another important case[liv] the Supreme Court stated that the power to suspend a sentence by the Governor under Art. 161 were subject to the rules made by the Supreme Court with respect to cases which were pending before it in appeal. The order of the Governor could only operate until the matter became sub judice in the Supreme Court and it did become so on the filing of the petition for special leave to appeal. After the filling of such a petition and till the judicial process is over the power of the Governor cannot be exercised. Whereas, in Maru Ram v. Union of India,[lv] the Court held that this power should be exercised by the Governor only on the advice of the Council of Ministers and not independently. But in my opinion it altogether is a wrong decision.

[c]. Ordinance Making Power

The Governor has ordinance making power[lvi] as the President of India.[lvii] Art. 213 provides that the Governor can issue Ordinances when two conditions are satisfied- i) when legislative Assembly (or where there are two Houses both the Houses) is not in session; and ii) the Governor must be satisfied that situation exists which render it necessary for him to take immediate action. Proviso of Article 213 reserves some area for the President, where the Governor cannot promulgate an Ordinance without instructions of the President:

When a Bill containing same provision is required to take assent of the President before introducing in legislature;

He would have deemed it necessary to reserve a Bill containing the same provision for the assent of the President; or

An act of the legislature of the state containing the same provision would under this Constitution have been invalid unless having been reserved for the consideration of the President; it had received the assent of the President.

The maximum life of an Ordinance may be seven and a half months unless it is replaced by an Act or disapproved by the resolution of the legislature before that period. In State of Punjab v. Sat Pal Dang[lviii] Supreme Court held that it is only the Governor who has got to satisfy himself as to existence of circumstances and necessity, and the existence of such necessity is not justifiable in any court. An ordinance cannot be declared void for the reason of non-application of mind or malafide.[lix] The Constitution does not provide any express or implied provision for re- promulgation of ordinances and because of this, the Governor (in fact the Government of state) many a times ridicule this power. What happened in Bihar is a glaring example of Constitutional impropriety, where the Governor of Bihar issued 56 Ordinances on a single day on Jan 18, 1976.[lx] Whenever any power is given to any body or person it is expected from him that it will be used in good faith. Our Constitution expects legitimacy not only legality. In D.C. Wadhwa v. State of Bihar[lxi] a constitution bench held that the Ordinance making power cannot be use as a substitutive of law making power. It is extra-ordinary power given to the Governor and must be exercised in accordance with the spirit of the Constitution. As Julius Paulus puts it, “One who does what a statute forbids, transgresses the statute; one who contravene the intention of a statute, without disobeying its actual words, commits a fraud on it.”[lxii] Recently, a seven-judge Constitution Bench of the Supreme Court in Krishna Kumar Singh v. State of Bihar[lxiii] once again reaffirmed that the requirement of placing the ordinance before the Legislature is mandatory and re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.

. Other Important Functions

Constitution of India assigns many functions on the part of the Governor such as:

The Governor of each state shall appoint a person, qualified to be appointed as a judge of High Court, as the Advocate General of the State. [lxiv]

The Governor shall make rules for the more convenient transaction of the business of the Government of the state and for the allocation among the Ministers of the said business.[lxv]

The Governor shall from time to time summon the House, prorogue the House and dissolve the Legislative Assembly.[lxvi]

The Governor may send message to Houses with respect to a Bill then pending in the legislature.[lxviii]

The Governor shall address the House at the commencement of first session of each House.[lxix]

[e]. Discretionary Powers

Since the Governors are required to act in dual capacity one, as the executive head of the state and two, as the nominee of the President in cases of national emergency or failure of constitutional machinery in the state, his responsibilities increase manifolds where he would be required to take decisions on his own irrespective of what his Council of Ministers advice. Thus, even though in normal conditions the exercise of the Governor’s powers should be on the advice of the Council of Ministers, occasions may arise when the Governor may find that, in order to be faithful to the Constitution and the law and his oath of office, he has to take a particular decision independently.”[lxx] If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor is his discretion shall be final and it shall not be challenged on the ground that he ought or ought not to have acted in his discretion.[lxxi]

“To act in his discretion”

These words used in Art-163 clearly show that the Governor of a state has discretionary powers under the Constitution in respect of which he is not required to consult his Ministers. These powers are not available even to the President of India, thus in this regard position of the Governor is stronger than the President. But the Constitution does not provide any exhaustive list with respect to which the Governor is to act in his discretion. In Shamsher Singh v. State of Punjab[lxxii] Supreme Court pointed out some area where the Governor can use his discretion:

Art. 371 A (1) (b) and (d) and (2) (b) and (f).

Schedule VI, Para 9 (2) and 18 (3).

Art. 239

His report to the President under Art. 356.

Reservation of any Bill for the consideration of the President under Art.200.

N. Ray C.J. said that baring the express provisions where it is mentioned that the Governor can exercise discretionary powers, in all other matters where the Governor acts in his discretion, he will act in harmony with the Council of Ministers. But in my opinion the phrase “to act in his discretion” confers much more discretionary powers on the Governor to act in his discretion with respect to any matter. He can take a decision on any matter without even informing the Council of Ministers. The provisions made under Art. 163 (1) and (2) are borrowed from the Government of India Act, 1935. But one peculiar feature of he Governor’s discretionary powers may be noticed under the Government of India Act, 1935, the Governor had to act in subordination to the Governor-General of India in exercise of his discretionary powers and Governor General himself was the officer subordinate to the Secretary of State for India (ultimate responsibility). But in proposed Constitution there was no proposal to make the Governor responsible to any one for the exercises of discretionary powers. Originally these discretionary powers were given to the Governor for the prevention of grave menace to the peace and safeguarding the interest of minorities. But subsequently these powers were extended in all the matters. The Constituent Assembly made some changes and the discretionary power became exercisable not for certain purposes but in relation to certain specific functions. The Draft Constitution specified the following discretionary powers:

Superseding his Ministers and take over executive function in an emergency; [Art. 188].

Appointment of the Provincial Auditor in Chief [Art. 188].

Appointment of the Chairman and members of the Public Service Commission [Art.285].

Besides this, the Governor of Assam had some discretion in matter relating to administration thereof.

Dr. Ambedkar categorically stated that the Governor would not exercise any function in his discretion and that according to the principles of the Constitution he would be required to follow the advice of his Council of Ministers.[lxxvi] The provisions relating to discretionary powers were considered by the special committee on April 10 and 11, 1948.[lxxvii] The Committee was of opinion that where we are accepting the nominated Governor and not elected, thus above reference of discretionary powers should be omitted from the Draft Constitution. But no amendment was suggested by the Drafting Committee in Draft Art. 143 and the reference to the Governor exercising certain functions in his discretion remain intact. Administrative Reform Committee described following functions as discretionary functions of the Governor: Appointment of Chief Minister; Dismissal of a Ministry; Dissolution of Assembly; Right to advice, warn and suggest; Give assent or withholding assent from a Bill; Statutory functions i.e. functions given under some statute; Discretionary powers of the Governor of Assam.

On analysis, we find that the Governor has discretionary powers to be used in his own discretion. Here discretion means choosing amongst the various available alternatives but with reference to the Constitution, rules of reason and justice and not according to personal whims. It should not be arbitrary. Power of Governor such as; power to appoint and remove Chief Minister, assent to Bills or reserve a Bill for consideration of the President and sending report under Article 356 would come under this purview. However, these powers must be exercised subject to some guidelines prescribed by the various Committees especially the Sarkaria Commission or decisions of the Supreme Court.[lxxviii]

Governor and His Council of Ministers

There shall be a Council of Ministers with the Chief Minister at the head to aid and advice the Governor in the exercise of his functions except in so far as he is “by or under” this Constitution required to exercise his function or any of them in his discretion[lxxix](Italics supplied). Note that the term used is function and not power. The phrase “by or under” the Constitution means that the need to exercise discretionary may arise from any express provision of the Constitution or by necessary implication. The Governor being the head of the executive appoints the Chief Minister and the other Ministers are appointed on his advice, and they hold office during the pleasure of the Governor.[lxxx] Yet, as a matter of fact, the pleasure of the Governor is either pleasure of the Chief Minister or Union Government as the case may be. The Governor remains a figurehead and real executive power was transferred to Council of Minister/Cabinet or Chief Minister alone.

[a]. Appointment of Chief Minister and other Ministers

It is clear from the above discussion that so far as the text of the Constitution is concerned the appointment of the Chief Minister is to be made by the Governor in his discretion, but this legal position does not disclose true picture. The very concept of collective responsibility borrowed from the British Constitution makes it clear that the discretion of the Governor is very much conditioned by the party position in the House and therefore, it appears highly legislative to say that the decision of the Governor in appointing the Chief Minister is final and based entirely on his unfettered judgment.[lxxxi]

Theoretically speaking-under Art.164 (1) of the Constitution the Appointment of the Chief Minister is made by the Governor in his own discretion and the exercise of his own discretion cannot be questioned in any court of law.[lxxxii] But practically the position is something different. If the Governor exercise his discretion in such a way that he does not appoints a Chief Minister from the party which has majority in house, it would be violative of the spirit of the Constitution. Therefore, the Governor’s discretion has no sense when a party has majority in the House. However, in present situation where no political party gets absolute majority, how the Governor in appointing the Chief Minister decides whether the person he is going to appoint enjoys the confidence of the House? Different Governors have used different methods: the first controversy occurred in 1952 in Madras after first General elections.[lxxxiii] The Governor, Shreeprakash invited C. Rajgopalachari to form a Government on his own discretion. But Rajgopalachari was not elected as an MLA.[lxxxiv] Therefore the Governor nominated him to upper house, and he got majority. [lxxxv] Prime Minister Nehru and President Rajendra Prasad did not want Rajgopalachari to become the Chief Minister, Nehru wrote to Rajagopalachari that “the one thing we must avoid is giving the impression that we stick to office and that we want to keep others out at all costs.”[lxxxvi]

This doctrine applied by the Governor of Madras (i.e. Sreeprakash doctrine) has been pursued in many states- i.e. PEPSU in 1952, Andhra in 1953, Orissa in 1957. but some Governors did not follow this doctrine, as in 1961 in Kerala and in 1962 in Orissa, they recognized the coalition Government. The discretion of the Governor in this regard has made his position very controversial specially in the era of coalition governments. The discretion has been abruptly used by the Governors from past in case of Rajasthan to present in case of Arunanchal Pradesh, the Governors discretion provided large opportunity for the centre to enforce its will in the state.

Various Committees and Commissions have made certain recommendations while choosing a Chief Minister, particularly the Sarkaria Recipe, which provide for following considerations;

The party or combination of parties which commands the widest support in the Assembly should be called upon to form the Government;

His task is to see that a government is formed and not to try to form a Government which pursues policies which he approves;

If there is a single party having absolute majority the Governor must ask the leader of that party to form Government;

If there is no such party, the Governor should act in order of preference as given:

Pre-poll alliance;

The single largest party staking a claim to form a Government with the support of others including independents;

A post-electoral alliance with all partners joining the Government;

A post–electoral alliance with some joining the Government and some parties supporting from outside; and

The Governor while going through the process described above should select a leader who in his opinion is most likely to command the majority in the Assembly.

Besides, person so selected should be called to prove its majority within 30 days on the floor of the House, and only there.

[b]. Dismissal of State Ministry

The ministers hold office during he pleasure of the Governor[lxxxvii] and withdrawal of such pleasure is a matter entirely in his discretion and the Council of Minister is collectively responsible to the Assembly,[lxxxviii] if we go by the literal meaning of the provision of the Constitution we can say that the Council of Ministers is expected to serve two masters, the Assembly and the Governor at a time. Till 1967 no Chief Minister or Council of Minister had been dismissed because of the single reason that up to 1967 there was one party rule both in centre and states as well. On the contrary the Governor was recalled if the Chief Minister felt annoyed with him[lxxxix]. After fourth general elections, the story begins and the first casualty was Ajoy Mukherjee, leader of U.F. Government in West Bengal in 1976. The political situation had become uncertain due to the defection of P. C. Ghose and 12 other members. The Governor Dharam Veera Dismissed Ajoy Mukherjee and appointed P.C. Ghose as the Chief Minister. It created a great furor, M.C. Chagla condemning the act said, “in my opinion if the Governor is satisfied that the Chief Minister has lost the confidence of the legislature he should ask him to convene a meeting of the legislature immediately and if he fails to do so he should convene it himself under Art. 174.” Another example of dismissal of a Chief Minister by the Governor was in Uttar Pradesh when Gopal Reddy dismissed Charan Singh. Further in 1998 for the first time in the constitutional history there were two Chief Ministers in the Assembly seeking vote of confidence as a result of dismissal of Kalyan Singh Ministry by the Governor Romesh Bhandari without any valid excuse.[xc]

Thus, as to dismissal of a Chief Minister and his Government there was a good deal of agreement that the Governor could dissolve the Assembly only on the advice of the Chief Minister and that question about a ministry’s majority should be established on the floor of the House, and not by the extra legislative players.

The Sarkaria Commission, Rajmannar Committee, Bangalore Seminar and the Administrative Reform Committee and Governors Committee agreed on this point. The conference of the presiding offices of Legislative Assemblies resolved that a Chief Ministers in loss of confidence “shall at all times be decided in the Assembly”.

[c]. Dissolution of State Assembly

Dissolution of State Assembly is another area where the Governor exercises his discretionary power. The dissolution as contemplated in the Constitution can be of two types firstly a normal dissolution envisaged under Art. 174 (2) (b) and secondly; a dissolution leading to emergency under Art. 356. A simple reading of Article 174 (2) (b) will suggest that dissolution of the legislative Assembly is a ‘discretionary power of the Governor.’[xci] In exercise of his discretion he can dissolve the Legislative Assembly even sooner than the completion of the term if the exigency of circumstances requires. The decision, in his discretion is final and the validity of anything so done by him shall not be called in question as to whether he ought to have acted in the manner or not, the acts done by him in performance of his duties are also protected from the scrutiny of courts under Art.361. However, dissolution under Article 356 puts an end to the State machinery and President’s Rule is imposed where the Governor rules over the State as a Central Agent and therefore, rightly called by K.V. Rao as “Abrogation” and not dissolution.

Sarkaria Commission holds that if the Ministry enjoys clear majority in the Assembly and recommends dissolution to seek out fresh mandate, the Governor must accept this advice. But a ministry having no support of majority or appears to have lost majority, it should be asked to face test on floor. If a ministry is voted out and no alternative emerges the Governor may dissolve the House or recommend President’s rule and leave the question of dissolution to the decision of the Central Government, but if decides to dissolve the Assembly, he should consult leader of the political party and also the Chief Election Commissioner.[xcii]

. Assent to Bills

The power to give assent to Bills under the Constitution is provided under Art. 200 which says that any Bill passed by both the Houses of the Assembly shall be sent to the Governor for his assent, where he has wide discretion either to:

Declare his assent; or

Withhold his assent; or

He may refuse the bill for reconsideration if it is not a money Bill; and

He may reserve the bill for the consideration of the President.

Here Sakaria Commission’s recommendation is very significant and must be followed by the Governors, “normally under Art. 200 Governor must abide by the advice of Council of Minister. Art.200 does not invest the Governor expressly or by necessary implications with a general discretion in the performance of his functions there under, including reservation of Bill. But if Governor finds that the Bill is patently wrong and unconstitutional, he may reject the Bill and for this purpose he has an officer named Advocate General to give him advice on legal points. It is mandatory on the part of the Governor to check the constitutionality of the Bill because he takes oath to preserve protect and defend the Constitution.

A question arises as to whether the Governor have any power to veto the Bill or not, the confusion really arises because Art.200 does not gives any time limit for giving assent to the bills and thus if the Governor keeps the Bill without giving his assent for long time may amount as exercising veto. But in my opinion he cannot do so, as constitutional legitimacy warrants him to give assent to the Bill within a reasonable time and if he is found to be working arbitrarily he may be removed from his office by the President for not following constitutional requirement.

[e]. Reservation of Bills for the Assent of President

Another controversial discretionary power of the Governor -the rationale behind this is to sub serve the broad purpose of co-operative federalism in the realm of the union-state relation. They are designed to make our system strong, viable, effective and responsive to the challenges of a social order. They are necessary means and tools for evolving cohesive, integrated policies on basic issues of national significance[xciii] and to avoid repugnancy with Union laws. But in practice this provision is being used as a device to interfere with the state Government. The statistics given by Sarkaria Commission is, during 1977 to 1985 the Governor reserved 1130 Bills, in which 1039 were assented by the President and in 31 instances he withheld the assent, returned five bills for reconsideration and 55 were still pending as on November 22, 1985.[xciv] Commission also suggested that needless reservations should be avoided, and to reduce delays the presidential disposition of Bills sent for consideration should be done with in four months of their receipt.[xcv]

Status of the Governor

The position of the Governor is the same as the position of the President, Dr. B. R. Ambedkar, Chairman of Drafting Committee authoritatively declared in the Constituent Assembly on 30th Dec’1949.[xcvi] Dr. Ambedkar’s statement was in reply to a pointed interruption by a member, Mr. Mohd. Tahir, when describing discretionary powers of the president, He asked, “how will it explain the position of the Governor and the minister of the states where discretionary power have been allowed to be used by the Governor? Dr. Ambedkar very categorically replied ‘dispelling the impressions that as constitution head of the State, the Governor enjoys greater powers……. than the President.

Before 1967 the position of the Governor was not discussed in the political field because except the State of Kerala there was Government of Congress party through out the country. It becomes necessary to evaluate the actual position of the Governor when Congress (I) politicians, kicked upstairs as Governor, misbehaved with the state Governments to win back a position at the centre and once the story begin, it continues till today. Every Central Government is using the office of the Governor as an Employment under the Central Government, and by this they try to control the state Government (of another party). Therefore, Hegde called Governor as glorified servant of the Central Government.[xcvii] If we go through the Constituent Assembly Debate, we find that the objects behind the establishment of the office of the Governor were two-fold. First, the Governor had to perform as a constitutional head of the state, and second, he was the appointee of the President. The spirit behind this was, as a constitutional head of the state the Governor will act for the welfare of the people and if the Centre Government is not taking due care of the state then he will represent the position of the state before Centre. But as an appointee of the President he will keep control over the state Government and to ensure that the State Government is going on according to the provision of the Constitution. K. M. Munshi, Member of Constitution Drafting Committee and one time Governor of Uttar Pradesh expressed the position of the Governor, “Governor is the watchdog of the constitutional propriety and link which binds the state to the centre, thus securing Constitutional unity of India.”[xcviii] None of the members expected Governor as autocrat but they were of the view that he should be invested with enough power, for maintaining of standard of the Government. B.N. Rau recommended for discretionary powers of the Governor. The view of Rau was discussed in the Provisional Constitutional Committee, Patel expressed that investing Governors with discretion is not invasion of ministerial responsibility. He could report of grave and emergency-situation of the State to the President.[xcix] H. V. Kamath moved an amendment for deleting of discretionary powers, of the Governor.[c] But Ambedkar held that retention of discretionary power is not against responsible Government. The IVth Schedule to the Daft Constitution contained instrument of Instruction for Governors was never adopted. Dr. P.K. Sen said “the function of the Governor shall be to lubricate the machinery of Government, to see that all the wheels are going well by reason not of his interference but of his friendly intervention.”[ci]

These all show that the Governor is not going to be a mere figure-head, the Supreme Court in 1979 well stated that, “the Governor’s office is not subordinate or subservient to the Government of India. He is not amenable to the directions of the Government of India, nor he is accountable to them for the manner in which he caries out his functions and duties.[cii] But in present scenario the Governor’s role has been quite changed in respect of the scheme of the Constitution, unfortunately, some Governors have not come upto the level at all, which is expected by the Constitution and exists merely as a figure-head, on the other hand some have exceeded their role by working as agent of Central Government. Both role played by the Governors are never intended by the Constitution or its makers, and is even insulting to the institution of Governor.

Our Supreme Court has analyzed twice the actual status of the Governor in the Constitutional scheme but unfortunately failed in doing so. In Ram Jawaya Kapoor v. State of Punjab[ciii] Supreme Court held that our Constitution has adopted the British system of Parliamentary model and the basic feature of this model is that the President and Governors are Constitutional heads and the real executive powers are vested in the Council of Ministers, same claptrap proposition is endorsed by the Supreme Court again in Samsher Singh v. State of Punjab.[civ] We have plenty of examples where the Governors have acted as spineless creatures and a puppet in the hand of state Government or the Central Government. But the Governor never realized the significance of this institution and he did not get courage to say that he is not a figure head for state Government nor as a Central spy to play politics.[cv] Sarkaria Commission remarked on the status of Governor, “the Governor is the linchpin of the constitutional apparatus of the state, his role has emerged as one of the key issues in Union-State relations and he has been criticized for want of “impartiality and sagacity”, and for being used by the Central Government” for its own political ends. Thus, it is enough to say that the Governor has definite powers under the Constitution. He is not the servant of the President. He takes the oath to preserve protect and defend the Constitution and therefore he has a very fundamental status under the Constitution.

VII. Conclusion

The Constitution of India was framed under the dark shadow of events like, the war in Kashmir, the Communist insurrection in Telangana, the Razakar menance in Hyderabad and the adverse postures of recalcitrant princes, which had apparently threatened the very survival of new Republic and these events had inevitably a catalytic effect on the framing process of new constitution. Averting the danger of disintegration, the framers shifted from a “tight federation[cvi]” to one with a “Paramount Centre”. Marked with growth of sectional loyalties in the heterogeneous Indian Society, the political homogeneity was counter-balanced with the help of the Centripetal forces. Partly based on parliamentary sovereignty, partly on judicial supremacy, partly unitary and federal pattern, partly rigid and flexible, the India constitution attempted to incorporate them in a single frame-structure for India, in which the office of Governor was designed as a political necessity.[cvii] It was a symbol of unity, coordination and cooperation between the Centre and the States. However, since inception the Governor’s role was misunderstood and under-estimated and they almost became unsolicited ceremonial Head. In our constitution, the divisions of roles are clearly preserved, and there is no role conflict at all as the Head of the State and as the so-called agent of the President. But a lot of confusion is created around this office by over-enthusiastic Governors, our Honorable Courts and misguided commentators.

Now the time has come when the Governor must understand his role properly in the context of the Constitution that he is presiding over the destinies of the State as its constitutional head, in a democratic federation. There are certain situations where he must exercise his discretion; but the discretion must be his own, objectively formulated and based upon full appreciation of facts, and irrespective of fear or favour. The Governor should bear in mind that he should not only be useful and impartial, but also must appear to be so. In May 1979, a constitution bench of the Supreme Court unanimously and categorically ruled that the appointment of the Governor by the President and his holding office during the pleasure of the President does not make Government of India and employer of the Governor. The Governor is the head of the State and holds a high constitutional office which carries with it important constitutional functions and duties and he cannot, therefore, even by stretching the language to a breaking point, be regarded as an employee or servant of the Government of India. The Supreme Court further observed, “It is impossible to hold that the Governor is under the Control of the Government of India. He is not amenable to the directions of the Government of India nor is he accountable to them for the manner which he carries out his functions and duties. He is an independent constitutional office which is not subject to the control of the Government of India.[cviii] These weighty observations of the Supreme Court should be prominently inscribed in every Raj Bhavan in the States. On the concluding day of the proceedings of the Constituent Assembly on 25 November 1949, member after member including Dr. Rajendra Prasad echoed that “success of a Constitution, even of the most meticulously written, will depend not so much on its language as on the spirit in which it is worked. It depends on us, the people, to make it or mar it.”[cix] Is it utopian to expect that the ideals and aspirations expressed by Rajen Babu may yet be fulfilled? But, a map of the world that does not include Utopia is not worth even glancing at, for it leaves out the one country at which Humanity is always landing…Progress is the realization of Utopias.[cx] Sarkaria Commission recommendations with respect to the choice of governor, appointment, removal and working of governor must be given effect to save this endangered office.

[ii] Fourth general elections were held in 1967, which radically transformed the Indian political scenario. The Congress monolith which for so long has dominated the Indian Political landscape, has been badly cracked but not shattered. The erosion of congress strength had been apparent. It was reflected in wholesome defections, internal factionalism, growing alienation of influential elements in Indian society. See for details Norman D Palmer, India’s Fourth General Elections, Asian Survey, Vol. 7, No. 5 (May, 1967), p. 275, https://www.jstor.org/stable/2642657.

[iii] Indian independence activist and poet, Sarojini Naidu, was famously called the “Nightingale of India or Bharatiya Kokila. She became the first woman of India who hold the office as a governor of Uttar Pradesh during 1947-49.

[iv] A freedom fighter, member in the Constituent Assembly, member of Rajya Sabha and the Governor of Madhya Pradesh from 1952 to 1957.

[vii] President Rule was imposed in State of Uttarakhand by the Union Government hardly 36 hours before the scheduled floor test, because the Speaker had refused a division of votes on the Money Bill despite a request from the “majority” 35 MLAs (26 BJP MLAs and nine Congress rebels) in the House on March 18 and therefore congress government was in minority in the house and the chief minister of Uttarakhand was allegedly involved in horse-trading. The emergency clouded the authority of the Speaker as well as prevented the holding of the floor test on March 28. High Court of Uttarkhand at Nainital questioned the power of Union Government and quashed the President Rule in State restored the Harish Rawat-led Congress government. A division bench of Justices Dipak Misra and Shiva Kirti Singh admitted the Centre’s challenge to the High Court decision and brought back President’s rule with a condition that Centre will not ploy to install a BJP government in the State. This was done by the apex court for the reason that the judgment of High Court was not yet available in the public domain.

The bench of Supreme Court finally ordered to conduct a floor test to be monitored by the top court delegated key executive officer in the state in order to test whether unseated Harish Rawat enjoys confidence of majority votes on the floor of the House. Finally, the Supreme Court stamped the successful floor test where Rawat gets 33 votes and reinstated Mr. Rawat as chief minister of Uttarakhand. The Supreme Court in this process condemned the role played by the Governor which once again dented the institution.

[xvi] In USA, the Governor of a State is directly elected by the people of State. The federal Government has nothing to do in the matter.

In Canada Lieutenant-Governors of Canadian Provinces are appointed by Governor-General in Council acting with the advice of Dominion Ministry; Sec. 58 of the BN Act takes away the prerogative of the British Crown to appoint Lieutenant-Governor.

In Australia, the Governor of a State in Australia is appointed by the Crown on the advice of the British Cabinet, who however, in practice, consults the Prime-Minister of the said State.[xvi]

Government of India Act, 1935 -Sec.48 (1) provides – “The Governors of the state are as much representatives of His Majesty for state purposes as the Governor-General of the Common Wealth is for Common Wealth purposes.”

[xxx] Recently in an unprecedented event the Modi Government appointed outgoing Chief Justice of India Mr. P Sathasivam as the Governor of State of Kerala. This was for the first time when a retired Chief Justice of India appointed as a Governor. In the past Justice Fathima Beevi, the first woman judge of the Supreme Court was appointed as the governor of Tamil Nadu.

[xxxiv]The vegetarianism of a Madras Governor Prabhudas Patwari angered President Neelam Sanjeeva Reddy, although one does not know whether it was a factor in the formers summary dismissal later on, without even a minute’s notice. V. R. Krishna Iyer, A CONSTITUTIONAL MISCELLANY, [2nd edn, Easten Book co. 2003], p. 13.

Which means “you take oath by mind and words as follows: I shall protect the world considering it as equivalent to the creator; I shall act fearlessly and observe the whole of Dharma in accordance with Dandaniti and not according to my own sweet will”.

[lvii] Under the Rajdharma principle the King exercised similar power to issue of Rajashasana (the royal edict). As Katyayan said, “what a King establishes as Dharma which is not in conflict with the Smritis and the usage of the country is a royal edict”. It was not an unfettered power, the King was the highest executive and he had very limited power to issue royal edict.

[lxxxiii] Congress party won 152 seats out of 375, UF gained 166 seats (single largest party) led by T. Prakasan

[lxxxiv] Governor may appoint a person as the Chief Minister without being a member of the House because word minister includes Chief Minister (Harsaran Verma v. Tribhuvan Narain Singh, AIR 1971 SC 1231].

[lxxxv] Sixteen members of the opposition parties crossed floor, allegedly in response to inducement.

[xci] Under a Parliamentary system of Government there are only two prerogatives which the King or the Head of State may exercise, one is the appointment of the Prime Minister and the other is the dissolution of Parliament [Dr. Ambedkar in Constituent Assembly Debates on 30th Dec’1948]. Vide CAD, vol. VII p. 1158.

[cv] We have few instances as in 1981, soon after his appointment as Governor of Sikkim Homi Taleyar Khan openly stated that he would not like to act merely as a figure head. Therefore, he toured extensively in his state, attended number of meetings and delivered speeches at different places. Utterly disgusted with the behavior of the Governor the Chief Minister commented, “There is a limit to everything”.

[cvi] A federation based on a minimum Centre and maximum autonomy for Constituent units.